The extra legal further consequence is that they have been published to the world as guilty of very grave and disreputable offenses, and must be under this, to them, unjust and utterly unfounded accusation, until their innocence is established upon trial, and, even after this, the besmirchment to which they have been subjected will endure.

The defendants aver their ability and readiness to make proof of these averments. Their truth is not denied, and indeed, at least arguendo, admitted, in that the United States attorney contends himself with the averment of the facts that he submitted on his responsibility an indictment to the grand jury, which recturned a true bill against the defendants, and that they were taken into custody under a bench warrant which thereupon issued from this court. There can be no denial of these facts, because the indictment and bench warrant are before us.

We are perforce compelled to admit our share in what was done, although no member of the court knew of it until the hearing in this cause. The grand jury must likewise admit its part in what was done, although the members of that well-intentioned tribunal may now learn, for the first time, with perhaps regret, that a true bill was returned without any evidence having been submitted in its support.

One of the defendants sued out a writ of habeas corpus when the situation above outlined was developed. The court felt obliged to remand the relator, and did so. Some of the defendants then moved to quash the indictment and for an inspection of the minutes of the grand jury in order to establish the fact that the indictment had been found without evidence. Afterwards the other defendants filed like motions, all of which we are now asked to dispose of on the paper books submitted.

Discussion.

We may as a prelude restate the general principles which underlie the questions which arise in this cause. The bitter experience of the people from whom we have inherited much of our law taught them that the power to arrest could not safely be left unregulated. Nearly 300 years ago they did so definitely regulate it in the instrument known to historical students as the Petition of Right, assented to by Charles I of England, although this was no more than a restatement of immemorial law. One of the first acts passed to confirm this in the reign of William and Mary was what is known as the Bill of Rights. Since then the doctrine of the law therein laid down has never been questioned, although it would not be true to say that it has never been violated. The same law has been incorporated in the Constitutions of every state in the Union, usually in the form of a Bill of Rights. It is clearly stated in one of the Ten Amendments, known as the Bill of Rights amendment to our Constitution of 1787. The right as expressed in the Constitution of Pennsylvania (article 1, § 8), and of the United States (Amendment 4) is to the effect that no one can be lawfully arrested except upon probable cause supported by the oath of some accuser. This right has always been enforced in nation and state (until recently) by a uniform practice which accorded to an accused certain subsidiary rights. These are: (1) That no warrant issued except upon a written complaint under oath setting forth justified grounds for the arrest; (2) the according to the accused a hearing upon the complaint by a committing magistrate; (3) a finding by such magistrate of probable cause, and a commitment of the accused for trial; (4) the right of the accused to challenge the justification of such commitment by habeas corpus, and to get the judgment of the court thereon; and (5) the finding of a true bill by a grand jury.

It will thus be seen that the accused was accorded two rights. One was to a fair trial; the other (a practically more valuable right) was to protection against unfounded charges. Provision was made for exceptional cases in that (1) a grand jury might present any one on its own motion; (2) the prosecuting officer file an information; or (3) might submit an indictment to the grand jury. Informations and submitted bills could only be resorted to, however, by special leave of the court.

The trial courts are not concerned with the soundness of the new practice but with the questions of law raised by the motions before us. These questions can be best presented in the form of propositions. They proceed upon three facts, all which we assume to be found, if we are at liberty to go into the inquiry, and of which there is no real denial:

(1) The bill of indictment was submitted to the grand jury on the responsibility of the United States attorney without any preliminary complaint, warrant, or hearing; (2) The names of no witnesses were indorsed on the indictment; (3) the grand jury found a true bill without hearing ...

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